The Arizona Senate doesn’t have to produce records for its election audit because they aren’t in the physical custody of the chamber, the Senate’s attorney said Wednesday in court.
Maricopa County Superior Court Judge Michael Kemp heard oral arguments today in the public records lawsuit brought by liberal watchdog group American Oversight against Arizona Senate President Karen Fann, Senate Judiciary chairman Sen. Warren Petersen and the Arizona Senate.
The group sued in May, seeking a bevy of records from communications between Senate audit liaison and former Secretary of State Ken Bennett and people involved in planning and executing the audit, contracts between the Senate, Cyber Ninjas and other third-party vendors. They’re also looking for records related to the budget and funders of the audit, plans about the audit’s operations and plans for direct voter contact, but the group was met largely with responses that the requested records were not in the Senate’s possession.
Since then, the group has received some records – emails to-and-from Fann, service agreements with groups providing security and other communications. The Senate has released about 1,200 pages of records, attorney Kory Langhofer, who’s defending the Senate, said. He said that about 15,000 more documents are being reviewed for release as long as they’re not found privileged or confidential.
“That’s what the Public Records Act requires and that’s what the Senate is doing,” Langhofer said. “What we’re litigating here is additional set of documents: documents that are not in our custody and that are only available to the vendors.”
However, the Senate has released little more in regards to its contractors, nor does it intend to.
Langhofer said that because these other records are in the physical custody of the Senate’s third-party contractors, not the Senate itself, they’re not subject to public records laws.
Attorneys for American Oversight said that kind of interpretation would gut the statute.
“Those documents need to be produced; otherwise, the public record statute will have a gigantic loophole that agencies can drive a truck through that will shield them from permitting the public to know what the government is up to,” American Oversight attorney Keith Beauchamp said. “No matter which side of the political aisle you’re on, that’s a bad thing.”
Kemp noted the public doesn’t know the cost of the audit.
“Mr. Langhofer, isn’t the public entitled to know who was paying for this, what President Fann referred to as ‘constitutional and legislative function,’ this important constitutional duty, isn’t the public entitled to know who’s paying for this? Besides the $150,000 that the senators already appropriated?” Kemp asked.
Langhofer said that the public is entitled to “know the information that’s in records that the public records law requires to be produced,” adding that the Public Records Act is the only basis for the public’s claims to records, not the state constitution or common law.
“That’s a great political argument,” he said. “They should talk to the legislature about it.”
Kemp said he would have a written ruling in seven to 10 days.
Last week, The Arizona Republic filed a special action in Maricopa County Superior Court seeking financial records and communications about the audit. The Senate has moved to consolidate the two.